Divyaprakash vs Brijesh Kumar
- Court
- Madhya Pradesh High Court
NEUTRAL CITATION NO. 2026:MPHC-IND:17448
1 MP-3301-2026
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SANDEEP N. BHATT
nd
ON THE 2 OF JULY, 2026
MISC. PETITION No. 3301 of 2026
DIVYAPRAKASH
Versus
BRIJESH KUMAR AND OTHERS
Appearance:
Shri Dheeraj Sharma - Advocate for the petitioner.
Shri Aditya Mishra - Advocate for the respondents.
ORDER
By this petition preferred under Article 226 of the Constitution of
India, has prayed for the following reliefs:
"It is therefore most respectfully prayed that this Hon’ble Court may
kindly be pleased to Set aside/quash the order dated 04/05/2026 passed
by the learned trial Court, and allow the application filed by the
petitioner under Order 9 Rule 7 CPC. Direct the learned trial Court to
permit the petitioner to appear and contest the suit on the merits. Pass
any other order/orders which this Hon’ble Court may deem fit and
proper in the interest of justice. "
2. Heard learned counsel for the parties.
3. Counsel for the petitioner has submitted that the petitioner is 70
years old and was pursuing the legal proceedings and sometime his son is
also attending the hearing of the present petition. It is submitted that in the
suit proceedings bearing RCS A/1346/2021, the petitioner/defendant did not
appear and the Court proceeded ex-parte on 13.04.2026. It is further
submitted that the petitioner with utmost promptness and without
unnecessary delay filed an application under Order 9 Rule 7 of the CPC on
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 02-Jul-26
5:27:28 PM
NEUTRAL CITATION NO. 2026:MPHC-IND:17448
2 MP-3301-2026
20.04.2026 by praying for setting aside order of ex parte proceedings. The
said application is filed within seven days, however, the Court has not
considered the same and dismissed the application on 04.05.2026. Therefore,
he has submitted that petitioner being a senior citizen and has pursued the
proceedings, one more opportunity is required to be granted for participating
in proceedings so that he can pursue with the legal remedy, which is already
available to him on merit and such hyper technical approach is not required
to be taken by the concerned trial Court and prays for interference as now
the matter is kept before the trial Court on 06.07.2026, therefore, he prays for
interim relief .
4. Learned counsel for the respondents who is appearing on caveat has
strongly opposed the same by pointing out that the petitioner himself in his
petition in para No.5.3 and 5.4 stated as under:
"5.3 That the petitioner/defendant has appeared in person
in the case, and when the matter was listed on 07.04.2026
and 13.04.2026, he was absent due to old age and sudden
medical difficulty. The petitioner sent his son, but the trial
court did not appreciate his son's presence because he was
not a party in the Case.
5.4 Thereafter, when the petitioner/defendant did not
appear in the case, he proceeded ex parte on 13.04.2026."
5. Thereafter, he has drawn my attention towards the impugned order
whereby, learned trial Court has specifically observed on the last page as
under:
"
जहां तक ितवाद क ओर से अपने आवेदन प म यह बताया गया है क वह
13.04.2026
दनांक को उप थत था तो त "संबंध म यहां यह उ $लेखनीय है क वह
07.04.2026 13.04.2026
दनांक एवं को अनुप थत था जसक अनुप थित
आदेश प +का म प, -प से उ $ले खत ह . । इस कार ितवाद 1ारा अपनी
अनुप थित का कोई कारण भी आवेदन प म उ $ले खत नह ं कया है तथा
13.04.2026
5यायालय के सम 6 यह आवेदन प तुत कर दनांक को अपनी
उप थित बताते हुये झूठ बोल रहे ह . । य द ितवाद उ : दनांक को उप थत थे तो
उनके 1ारा सा ;य तुत <य= नह ं क गई इसका भी कोई कारण आवेदन प म
नह ं बताया गया है। यहां यह भी उ $लेखनीय है क इस 5यायालय म कैमरे भी लगे
ह . उसके बावजूद उनके 1ारा उ : दनांक= को इस 5यायालय म +बना कसी डर
हुये
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 02-Jul-26
5:27:28 PM
NEUTRAL CITATION NO. 2026:MPHC-IND:17448
3 MP-3301-2026
के अपनी उप थित बताई जा रह है। अतः ितवाद क ओर से तुत आवेदन प
"
अ वीकार कर िनर त कया जाता है।
6. In his application under Order 9 Rule 7 of the CPC, he has also
stated in para 3 as under:
"3- , 13/04/2026
यह क करण मे ितवाद 1ारा दनांक को भी ितवाद माननीय
,
5यायालय के सम 6 आवेदन पर समय लेने के िलए उप थत था एवं माननीय
हुआ
,
5यायालय के सम 6 समय लेने क ाथ@ना क गई थी पर 5तु ितवाद कानूनी
काय @वाह क जानकार न होने के कारण ह ता6र नह कर सका एवं न ह करण
13/04/2026 ,
क दनांक के आदेश प +का देख सका इसिलये ु टवश माननीय
07/04/2026 13/04/2026
5यायालय के 1ारा करण म दनांक एवं को ितवाद क
अनुप थित दज @ क गई है एवं माननीय 5यायालय के 1ारा करण मे ितवाद के
आवेदन प को भी िनर त कर दया गया है एवं ितवाद के +व-B एक प 6ीय
काय @वाह करने के िलए करण को अ 5तम तक @ करने के िलए आज दनांक को
"
िनयत कया गया है।
7. It is further submitted that the present petition is filed by the
petitioner to delay the proceedings by deliberately not proceeding with the
matter. By referring to the earlier proceedings of the Court, he has submitted
that the petitioner has tried to make out his case by submitting that due to the
medical problems the doctor has advised him to attend only one legal
proceeding in a day in their Court and, therefore, he had not attended some
other proceedings on earlier occasion. He has further submitted that even the
petitioner has filed application under Section 24 of the Civil Procedure Code
for transfer of the proceedings by making incorrect averments in the
application. He has further submitted that the affidavit in support of
application filed by the petitioner under Order 9 Rule 7 of the CPC before
this Court, the occupation of the petitioner is mentioned as insurance service
and in fact he is a practicing Lawyer. Therefore, he has submitted that
considering the conduct of the petitioner and considering the fact that he has
deliberately not cooperating in the proceedings, no relief is required to be
granted in favour of the petitioner.
8. I have considered the rival submission of the parties and I have
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 02-Jul-26
5:27:28 PM
NEUTRAL CITATION NO. 2026:MPHC-IND:17448
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also perused the relevant documents, more particularly the impugned order
and the averments made in the present petition as well as averments made in
the application under Order 9 Rule 7 of the CPC.
Order 9 Rule 7 of the CPC is reproduced below for reference reads as
under:
" 7 . Procedure where defendant appears on day of adjourned
hearing and assigns good cause for previous non-appearance. -
Where the Court has adjourned the hearing of the suit ex-parte and
the defendant, at or before such hearing, appears and assigns good
cause for his previous non-appearance, he may, upon such terms
as the Court directs as to costs or otherwise, be heard in answer to
the suit as if he had appeared on the day, fixed for his
appearance."
9. Considering the fact that the petitioner is actually practicing
Lawyer and with the person who is aged 77 years, after putting certain years
in practice, making totally contradictory averments in the plaint before the
trial Court as well as before this Court is required to be viewed very
seriously. As indicated by the counsel for the respondents that in the
application filed under Order 9 Rule 7 of the CPC before the trial Court, it is
stated that the petitioner Court could not remain present before the trial
Court. However, while perusing the para 5.3 and 5.4 of the present petition,
it is specifically mentioned that he could not remain present in the Court.
Order 9 Rule 7 of the CPC which requires good cause for his previous non-
appearance and for that atleast petitioner should make correct avernments
for which he has filed application under Order 9 Rule 7 of the CPC and
subsequent proceedings pursuant thereto.
10. From bare reading of the averments in the present proceedings
before the trial Court as well as before this Court and reading of the
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 02-Jul-26
5:27:28 PM
NEUTRAL CITATION NO. 2026:MPHC-IND:17448
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provisions under Order 9 Rule 7 of the CPC, it cannot be said that the
petitioner is able to establish that there is good cause for his previous non-
appearance. In fact, he himself has tried to confuse the Court or mislead the
Court by making contradictory averments in the proceedings before the trial
Court as well as before this Court. It is always expected that the litigant
should come with clean hands before the Court by disclosing every facts true
and correct and also by producing all relevant material on record. Normally,
the Courts are taking lenient view while deciding application under Order 9
Rule 7 of the CPC, without taking much hyper technical view but while
considering the fact that the present petitioner is a practicing Lawyer and
who has tried to plead his case before the trial Court as well as before this
Court in total contradictory manner by narrating the facts in the application
before the trial Court as well in the petition before this Court. Otherwise also,
on the basis of material available on record, more particularly by referring to
the earlier proceedings, it seems that petitioner is trying to play dilatory
tactics by not proceeding with the suit proceedings in prompt manner.
Therefore, I found no reason to interfere with the order passed by the trial
Court viz-a-viz reasons assigned by the trial Court are found to be just and
proper. No reason can be considered as perverse or illegal. There is no scope
of interference in the matter while exercising supervisory jurisdiction under
Article 227 of the Constitution of India. Petition is required to be dismissed.
11. Considering the conduct of the petitioner and in view of the fact
that the petitioner has made inconsistent statements in the pleadings and also
tried to get undue advantage by way of such pleadings, this Court is of the
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 02-Jul-26
5:27:28 PM
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opinion that heavy cost should be imposed on the petitioner, who is
otherwise a practicing Lawyer, well aware about all requirement under the
law and cannot be considered as illiterate person having no knowledge of
law.
12. In view of the above discussion, the petition is dismissed with cost
o f Rs.2,500/-(Rupees Two Thousand and Five Hundred Only), which is
required to be deposited by the petitioner in the High Court Bar Association,
Indore within seven days from today and obtain a receipt.
13. Petition stands dismissed, accordingly.
(SANDEEP N. BHATT)
JUDGE
jyoti
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 02-Jul-26
5:27:28 PM